If a lawyer and client can only communicate through a language or sign-language interpreter, must the lawyer consider and arrange for a qualified interpreter?

Plain-English summary

The committee considered whether a lawyer who cannot communicate directly with a client in a mutually understood language (because of a foreign-language or hearing barrier) must consider the need for, and when necessary secure, a qualified interpreter. It surveyed the growing role of interpreters in the legal system, noting the large non-English-speaking and hearing-impaired populations and the due-process cases requiring interpreters for criminal defendants.

The committee concluded the obligation exists. A language barrier does not automatically preclude representation, but once a lawyer agrees to represent a client with whom effective communication is only possible through an interpreter, the need for qualified interpreter services cannot be ignored. Adequate communication is necessary both to advise the client and to gather the information needed to prepare the matter, so under DR 6-101(A)(2) (handling a matter without adequate preparation) and the competence duty of DR 6-101(A)(1), failure to take steps to secure an interpreter when one is plainly needed may breach the duty of competence; EC 6-3 treats an interpreter as the kind of other-discipline professional whose association may be required. The committee added that the lawyer may not passively leave the interpreter decision to the client, and that failing to bridge a communication barrier the lawyer knows can be bridged may violate the duty under DR 7-101(A)(3) not to prejudice the client. On confidentiality, it warned that exclusive reliance on family, friends, or amateurs to interpret risks inaccuracy and may imperil client secrets under DR 4-101(D), and that limiting communication to court sessions when an interpreter happens to be present prejudices the client. Whether failing to secure an interpreter is unlawful discrimination under DR 1-102(A)(6) raised questions of law (disparate treatment, reasonable accommodation) on which the committee did not opine, but it noted such failures can reflect bias or condescension that EC 1-7 counsels against.

Currency note

This opinion was issued in 1995, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules and Ethical Considerations cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must a lawyer arrange an interpreter for a client who does not share a common language?

A: The opinion concluded that once the lawyer takes on a client with whom effective direct communication is only possible through an interpreter, the lawyer must consider the need for and, when necessary, secure a qualified interpreter.

Q: Can the lawyer just leave the interpreter decision to the client?

A: Per the opinion, no; the lawyer may not passively leave the decision to the client and must help the client understand the interpreter's significance and take steps to secure one when needed.

Q: Is it acceptable to use a family member or rely on note-taking with a deaf client?

A: The committee warned that relying on family, friends, or amateurs, or on exclusive note-taking, risks inaccuracy, may reflect bias or condescension, and may imperil client confidences under DR 4-101(D).

Q: Did the committee decide whether failing to provide an interpreter is unlawful discrimination?

A: No; it treated whether such a failure violates anti-discrimination law and DR 1-102(A)(6) as a question of law on which it did not opine.

Background and rules framework

The opinion applied New York Code DR 6-101(A)(2) (adequate preparation) and the competence duty of DR 6-101(A)(1), DR 7-101(A)(3) (not prejudicing the client), DR 4-101(D) (preventing disclosure of secrets by others), and DR 1-102(A)(6) (unlawful discrimination), with ECs 1-7, 6-3, 7-1, 7-8, and 7-11. The analysis corresponds to ABA Model Rules 1.1 (competence), 1.4 (communication), and 1.6 (confidentiality).

Citations and references

Rules of Professional Conduct:

• New York Code DR 1-102(A)(6), DR 4-101(D), DR 6-101(A)(2), DR 7-101(A)(3); EC 1-7, 6-3, 7-1, 7-8, 7-11 (applied in the opinion)
• MR 1.1 (competence); MR 1.4 (communication); MR 1.6 (confidentiality)

Statutes:

• 28 U.S.C. 1827, 1828 (federal court interpreters); New York Judiciary Law art. 12 (court interpreters); Americans with Disabilities Act, 42 U.S.C. 12181

Cases:

• United States ex rel. Negron v. New York, 434 F.2d 386 (2d Cir. 1970), interpreter required for non-English-speaking defendants
• People v. Ramos, 26 N.Y.2d 272 (1970); United States v. Mosquera, 816 F. Supp. 168 (E.D.N.Y. 1993)

Other opinions cited:

• California 1984-77: a language barrier does not automatically preclude representation

See also

• NYC Bar Formal Op. 1995-11: Supervising Nonlawyer Staff and Fee Sharing
• ISBA Ethics Op. 684: Law Firm Employing a Nonlawyer Labor Specialist
• NYC Bar Formal Op. 1995-6: Holding Settlement Funds for an Incompetent Client

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1995-12-competent-and-zealous-representation-unlawful-discrimination-in-the-practice-of-law-confidentiality-use-of-interpreters/